by Samuel Marete

I write on the morning of polling day, having just cast my vote. It is just as well that I am writing my conclusions on the matter after having voted, for I am sure my conclusion has changed.

The role of the campaigns

One thing that is clear (in hindsight) is that next time such important decisions are to be made, the IIEC (or perhaps the future IEBC) should endeavour to provide as apolitical an atmosphere as possible. It is my firm belief that politicians have done more harm than good as regards the process. Just a couple of examples:

1. The Prime Minister, Hon. Raila Odinga, told people at the Coast that they will be able to elect their chiefs under the new constitution. Believe it or not, chiefs are not so much as mentioned in the entire document (chiefly because they are part of the Provincial Administration, which has no place in the new Constitution and will be phased out in 5 years, notwithstanding politicians’ assurances).
2. The Minister for Higher Education, Hon. William Ruto, told people in Kiambu that it is not right for Kiambu with a high population to have the same number of senators as another county with a lower population. Here he very conveniently forgot to mention that the other house of Parliament, the National Assembly, through the population quota system, will have precisely this manner of representation. Given that the bulk of legislative power (and I mean the bulk) resides in the National Assembly, densely populated places like Kiambu stand to benefit massively from proportionate representation under the proposed Constitution. This was a lie of magnificent omission on Hon. Ruto’s part.

These smoke-and-mirror tactics have really not been very useful in delivering the truth of the Draft to Kenyans.

Outcome

1. Tribe: At the time of writing, “Yes” looks set for victory, if the polls are to be believed. We would be lying to ourselves if we did not admit that this is in part because a good number of “tribal chiefs” have come out in support of the draft. The unity of the Kikuyu and Luo vote alone (with each supporting of the President and the Prime Minister) will prove a significant factor. Hence we find ourselves confronted with the sad truth that the Draft may pass not so much because of its merits but because our leaders – leaders we have trusted to our detriment in the very recent past – have told us to vote for it. As a nation, we have not yet discovered that what President Kibaki/Hon. Odinga/Hon. Ruto tell us is often quite irrelevant, never more so than when what they are saying is false. Not everyone found themselves able to see beyond “Kibaki/Raila is wrong” or “Ruto is wrong” or “the church is right” when deciding what would inform their vote.
2. But I believe there is another factor underpinning the poll results. The consistent lead the “Yes” camp has had over the “No” camp reflects a universal desire among the citizens of this nation: it reflects our desire for change. It is a silent admission of what every Kenyan knows: that we are not on the right track. We often differ (generally along tribal lines) as to what the right track actually is. But that we are not on it seems clear to all. The same ingredients, to a lesser extent, were present in the 2002 election. Tribal unity gave strength to the common view that fundamental change was required. And this seems to be happening again.

Implementing the document

A Yes victory is not assured, but even that victory will be merely the beginning of a long, long road. To begin with, Parliament has a great deal of supporting legislation to pass. 30 major pieces of legislation need to be passed in the two years before the 2012 elections, to begin with. The Sixth Schedule provides for a 9-member Commission for the Implementation of the Constitution whose functions will be to monitor, facilitate and oversee the development of legislation and administrative procedures required to implement the Constitution. It will report to a Parliamentary Select Committee called the Constitutional Implementation Oversight Committee . However, the volume of legislation to be passed makes me suggest that these measures may not be enough; Government should consider mini committees, staffed by subject matter experts, who should prepare this supplementary legislation and present it to respective Ministers for review and subsequent tabling in Parliament. It is my view that Government may not have sufficient capacity to deliver an implementation of the Constitution true to the spirit of the original document within the deadlines set.

A further hurdle is that some of that legislation is in direct conflict with the interests of sitting MPs (e.g. recall of MPs, minimum and maximum land acreages).

There is also the matter of the National Land Commission and the other provisions regarding land. It is all very well and good for the Constitution to mandate the NLC to investigate historical land injustices. But who are we going to appoint to this Commission? Seeing that Luis Moreno-Ocampo is having to do our dirty work for us in The Hague, does this mean that we will have to invite the Justice Krieglers of this world to staff the Commission in an effort to maintain neutrality? Are we going to be honest enough to admit that land problems in the Rift Valley stem from less-than-honest Kikuyu land purchases and unfair allocations of land to Kikuyus during Kenyatta’s regime? Will we be willing to take an honest look at land clashes in the Coast and Mt. Elgon areas?

If the draft passes, we will need to have the attitude that we have merely arrived at the foot of the mountain, and that its peak, though now in sight, is still some way off.

Finally

I will confess that at the polling station this morning, I was yet undecided. The advantages of Yes were clear, but two issues were in stark relief in my mind:

1. The massive burden that the new Government structure will place upon the taxpayer, and
2. The ambiguities of the abortion clause.

While I stood there conversing with a close friend, a man came and asked us if we knew where he could cast his vote. We didn’t know, but we directed him to the clerks. I took a closer look at the man. His clothes were far from new. He had no doubt walked many a tired mile in his shoes, judging from the look of them. He himself seemed – not frail – just in less than robust health. His face showed little in the way of hope, to the extent that I wondered quite why it mattered so much to him that he should cast his vote. When the time came for a decision, I remembered him again, and I asked myself some questions. Which vote, “Yes” or “No”, would give that man and millions like him a fighting chance at better representation, at holding his leaders accountable for their actions, and at more efficient delivery of government services? Under which system, present or proposed future, would he and I be better able to fight against injustices perpetrated by a seemingly untouchable ruling elite? When I looked at it that way, things seemed clearer.

And so I voted Yes. A reluctant Yes. A Yes that struggled, and still struggles to believe; a Yes voted more in faith that a better future beckons than in sure knowledge that this will indeed be the case.

A Yes dragged out of me by hope that has precious little foundation in fact.

But a Yes, nonetheless.